HARRY BRANSON, Magistrate Judge
Petitioner moves for a stay of proceedings. Docket No. 48. He states that a state court habeas corpus petition has been filed in the superior court for the State of Alaska, and argues that there is a "sufficient factual overlap between the issues Mr. Alto raised in his initial federal petition and the current recently filed State of Alaska petition to justify staying the pending federal petition pending the outcome of Mr. Alto's State court petition." Id. at 1, 2.
The respondents oppose the motion for a stay, contending that a "withdrawal and abeyance" procedure is permissible only where the petitioner has exhausted at least one state court claim. Docket No. 50. The respondents argue that a petition that contains no exhausted claims must be dismissed. Id. at 2.
This Court, having reviewed the foregoing, now submits its Report and Recommendation.
DISCUSSION
The Supreme Court has "long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims." Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554 (1991). Under the principles of comity, the state must have the first opportunity to remedy any alleged violations of state prisoner's federal rights. Coleman, 501 U.S. at 731, 111 S.Ct. at 2555.
The "exhaustion of state remedies" doctrine is designed so as to prevent disruption of state judicial proceedings and to protect the state courts' role in the enforcement of federal law. Id., quoting Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982).
Similarly, the Ninth Circuit has held that a federal habeas petition must be dismissed "immediately" by a federal district court if the petition contains no exhausted claims. Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
The law is clear on this issue. Petitioner has not exhausted any of his state claims. Staying the proceedings until he exhausts his state claims is unnecessary. The Court is "obliged" to dismiss habeas petitions that contain no exhausted claims. Id.
RECOMMENDATION
In light of the foregoing, this Court recommends that the Respondents' Motion to Stay at Docket No. 48 be DENIED.
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business on FEBRUARY 14, 2005. Response(s) to the objections shall be filed on or before the close of business on FEBRUARY 22, 2005.
Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. The parties shall otherwise comply with provisions of Federal Rule of Civil Procedure 72(b).
The failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).